Guides & Advice

Early engagement is vital to help ensure planning support is there for NHS Trusts

The recent Secretary of State decision relating to land at Wolborough Barton in Devon (appeal reference APP/P1133/W/18/3205558) has thrown the issue of s.106 contributions for NHS trusts into the spotlight.

The background to the case

The appeal related to the proposed development of a strategic housing site in South Devon for approximately 1210 dwellings and accompanying infrastructure. The appeal was against the Council’s failure to determine the application within the requisite timescale and was subsequently recovered by the Secretary of State.

The appeal site was part of a larger site which was allocated for housing in the Teignbridge Local Plan 2013-2033 (adopted 2014).

The appeal (which was recovered by the Secretary of State) was considered at a public inquiry which sat in March and June 2019.

In February 2019 the local NHS Trust submitted a representation which sought a financial contribution of £1,070,416 to mitigate the impact of the development on the existing healthcare facilities.

The decision

The Inspector, in her report, summarised the NHS Trust’s case as centring “on a short-fall in funding for the care of new residents which amounts to at least an 18 month lag after the population increase. In the contest of the current NHS funding arrangements, an increase in population would be responded to in the longer term, but the [Trust] argue that revenue support such as staffing costs would have to begin as soon as population increases.”[1]

The Inspector acknowledged the impact of the proposal on the NHS and made clear that anticipated burden on the Trust was “unfortunate and troubling”[2], and further accepted that the existing funding mechanism places the Trust at “an undeniable disadvantage”[3].

However, the Inspector also acknowledges that as part of an allocated site, which had been in an adopted Local Plan since 2014, the proposed development should not “have come at a surprise to the Trust”.

Critically, it was noted that NHS England had been consulted on the Local Plan.

The Inspector concluded that “in the circumstances of a ‘known’ development (that is to say one specifically allocated in the Local Plan) within an adopted Development Plan document which had been the subject of consultation with relevant health providers at the time of production, it can not be justified to require a developer to plug a gap in funding essential to pay staff ways, which is brought to the appeal at the eleventh hour, even though that may, in part, be due to some element of new population which may move into the Newton Abbot area as a result of the building of new homes.”[4]

Whilst the Inspector acknowledged the existence of other appeals in which requests for contributions have been accepted by Inspectors, in respect of this appeal she noted that “it is the inclusion of the appeal site as a LP allocation and consequently a site which has been the subject of consideration by associated service providers in respect of future demands on their services, which I consider distinguishes this case.”[5]

In the Decision Letter, the Secretary of State agreed with the Inspector “that in the circumstances of a ‘known’ development within an adopted Development Plan document which had been the subject of consultation with relevant health providers at the time of production, it cannot be justified to require a developer to plug a gap in funding essentially to pay staff wages, which is brought to the appeal at the eleventh hour, even though that may, in part, be due to some element of new population which may move into the Newton Abbot area as a result of the building of the new homes (IR361). For this reason he considers that the provision obligation fails to meet the tests of Regulation 122 of the Community Infrastructure Levy Regulations 2010 (as amended) and is not therefore enforceable.”[6]

What are the implications for NHS Trusts?

When looking at the wider implications of this decision it is clear that the fact that the appeal site had been allocated in a development plan for five years prior to the Inquiry and that the NHS Trust had only sought to raise the need for a contribution one month prior to the opening of the Inquiry did not assist their case notwithstanding the financial impact which the Inspector and the Secretary of State both acknowledged would arise as a consequence of the development being allowed.

It is therefore clear for Trusts seeking to secure financial contributions to mitigate the impact of services which arise from development that early engagement in the process is important. Firstly, they need to be engaging in the local plan process; and secondly, they need to engage with planning applications at an early point (as the eleventh hour nature of the request was evidently a cause of concern for the Inspector and the Secretary of State).

For local authorities and developers, it seems that the Secretary of State has accepted that contributions from windfall sites and those not specifically allocated in a Local Plan could be acceptable and CIL compliant.

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[1] Inspector’s Report para 355 [2] IR para 357 [3] IR para 359 [4] IR para 361 [5] IR para 363 [6] SOS Decision Letter para 46